T-Mobile’s Binge On program is “likely illegal” according to the Federal Communications Commission’s Open Internet Order of 2015, Stanford Professor Barbara van Schewick, a “Net Neutrality expert”, argued in a 51-page document (PDF) submitted to the FCC this week.
According to the report, the carrier’s zero-rated video service—which allows users to view certain video streams without it counting against their data allotments—runs afoul of Net Neutrality standards in that “The program limits user choice, distorts competition, stifles innovation, and harms free speech on the Internet.”
Simply put, by creating a system wherein T-Mobile clearly favours certain content providers over others (that is, driving people towards the carrier’s content partners as opposed to other video streams), the company is violating the FCC’s rules of fair competition, and such practices under this current Net Neutrality regime are clearly illegal.
On the surface it would seem like T-Mobile’s Binge On program is a consumer-friendly approach that, in a data-strapped wireless world, would likely be welcomed by the vast majority of users without so much as a second thought. I mean, video feeds optimized for mobile devices that don’t count against one’s data cap, what’s not to like?
But this is where the true desire for an open Internet comes into play, as the downside of this service is that it clearly favours select services, meaning smaller companies or simply ones that T-Mobile just doesn’t want to include (YouTube perhaps) are virtually hamstrung, allowing, as Forbes contributor Matt Hickey explains, “larger companies free reign to feature their services while providing and distinct disadvantage towards others, especially newer start-ups.”
In fact, ignoring the claims that T-Mobile is throttling Internet traffic as part of this program, the Stanford report lays out several other reasons why T-Mobile’s zero-rated streaming video optimization program should be considered illegal by the FCC’s own definitions.
- Competition is hampered because T-Mobile’s content partners have a clear competition advantage since their content is free to watch.
- In the future more content providers will utilize Binge On services because that’s where users are, thus further hampered competition.
- The service reduces user choice, as partnered videos are unlimited while services not part of T-Mobile’s program are limited to 9min per day.
- Free online expression is curtailed because Binge On is primarily an entertainment service, doing nothing to promote educational or non-profit videos.
- It stifles innovation because start-ups have to work harder to get accepted into the program.
- The service discriminates against content providers that employ encryption.
- Binge On favours video streams over other types of data.
Simply put, under the guidelines of the FCC’s Open Internet Initiative, T-Mobile’s job is to provide the same quality of Internet connection to all types of traffic, without discrimination or arbitrary management (throttling), and given that Binge On clearly favours certain content providers and certain types of content, the company’s service is in clear violation of the FCC’s regulations.
Now of course the flip side is that T-Mobile is offering the service for free and users are able to opt-out (plus, T-Mobile would say that consumers like it), so we’ll have to wait to see how the FCC interprets its own rules when it comes to something like Binge On, which could be seen as consumer-friendly, but something that clearly violates Net Neutrality standards.